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Every day stories abound that indicate decay and failure. Those in power, however often they are reshuffled, seem unable to answer the questions, or find that they do not have the authority that they thought they did to change things. Andy Burnham is the latest to discover that he pulls the levers of power, says ‘go’, and instead of his servant going, his servant says, ‘I cannot’.

In the last week, the failures include the inability to ensure that PC Andrew Harper’s killers remain in prison to serve their sentences, even though the Prime Minister wants this to happen. Cambridge University has been humiliated by the award of a professorship to Jason Arday and the subsequent attempt to accuse his critics of racism. Electricity companies have told people not to use electricity during a solar eclipse, and small boat arrivals have become large boat arrivals.

All of this indicates a broken Britain. Yet there are clear underlying causes that have led to all of this happening. It is not that Britain is ungovernable, or that the particular problems are not solvable. It is, in its way, rather worse. We have chosen not to be governed.

Every one of the failures listed above comes from a legislative cause, from legislation that is designed to be ‘entrenched’, a concept that has traditionally been alien to the British Constitution. The three main culprits are the Human Rights Act 1999, the Climate Change Act 2007 and the Equality Act of 2010. Each one of these has overarching powers used to ensure that future government action is in accordance with them, so limiting discretion and making the levers of power fail, because the connecting wires have been cut.

Until the European Court ruled against it and the system was changed following its orders, the final decision to release prisoners was, in certain circumstances, made by the Home Secretary. This was a political as well as a judicial decision, to retain confidence in the criminal justice system. It applied especially to murder cases and had a compelling logic.

When the death penalty still existed, the ability to exercise the prerogative of mercy lay with the Crown, which for routine purposes meant the Home Secretary. Thus, when death was replaced with a whole life term, it logically followed that the ability to release should continue to lie with the same person.

The European Court of Human Rights thought otherwise. Jealously guarding the power of the judiciary, it ruled that such decisions could not properly be made by Ministers, but had to be made by a judge on sentencing, to protect the human rights of murderers. This means that the Sentencing Act 2026 could not give any Ministerial discretion over release dates. Hence the Government faced a conundrum, about which it has not been entirely honest.

While I accept that the Prime Minister does not want PC Harper’s killers released, the Labour Government he now leads essentially accepted David Gauke’s report, and its recommendations to reduce the amount of time served in prison. It has used the excuse of overcrowding to stop short sentences of under twelve months, and to switch other sentences to one third incarceration, one third place surveillance and one third release on licence.

This is a policy choice which the Government has not been willing to defend, as it is not popular and probably will not be successful. This dishonesty, or ‘spin’ to be generous, means that extending the excluded categories not only has a short-term disadvantage of keeping more prisoners in gaol, but it also undermines the unadmitted policy change.

This prevents the easy solution of all perpetrators of manslaughter from being kept in prison, because it undermines the new policy. Naturally, the government does not want to admit this. An even easier solution would have been to add Ministerial discretion to the Sentencing Act to allow individual prisoners to be kept in gaol, but the Human Rights Act prevents that from happening.

The next recent example relates to Cambridge University and Jason Arday. It is, fundamentally, a consequence of the Public Sector Equality Duty, which is required under the Equality Act 2010. Every decision a public body makes needs to bear in mind equality consideration, and it creates an implicit expectation that there will be equity, that is to say equality of outcome, in the appointments process.

This means that institutions, and Cambridge will not be alone, need to weight their processes to encourage applicants from minorities. In other words, they create an equalities bias that is, in itself, discriminatory.

Jason Arday, in that context, was manna from heaven. He ticked so many boxes at once, both on race and disability, that the fact that he was a fantasist was ignored. The consequences of this were of no concern to the bureaucracy at the University, because he made them look good. And so they encouraged his fantasy by promoting him, not just within the university, but in publicity materials as well. He was an invaluable public relations tool, regardless of the effect on students, whose interests seem to have been wholly overlooked. Until, of course, he was exposed, and the University looked completely foolish.

DEI, Diversity, Equity and Inclusion, has grown up since the Equality Act and is a pernicious form of discrimination. Again, it is legislated for and has an overriding force, so that lawmakers must consider it when making future laws. It is, thus far, a successful attempt at ‘entrenched’ legislation.

Another is the 2007 Climate Change Act, and its secondary offshoots, such as the statutory instrument that made net zero by 2050 a legal target. This Act has destroyed a once highly efficient electricity system.

In 2000, industrial electricity prices were in line with those in America. Now they are four times higher. This is a consequence of concentrating on renewables which, by their very nature, are unreliable. The wind does not always blow, nor the sun shine. This is not just during the rare occasions when there are solar eclipses. In the winter there is very little sunshine and a high demand for electricity. So backup plans are essential, which are extremely expensive.

This has made British industry uncompetitive and has led to manufacturing moving offshore, which has the effect of increasing total emissions, whilst reducing those for which Britain is technically responsible, alongside, of course, reducing employment in this country.

Yet the folly of the Climate Change Act has meant that a gas-driven energy policy would be illegal, and even exploring for more oil and gas has run into problems in the courts because of this Act. Once more, it is a semi-entrenched Act, that seeks to influence policy well beyond the strict confines of energy. It affects building regulations and infrastructure projects as well as many others.

Small boats becoming big boats is a similar problem to that of prison releases. It is a consequence of the Human Rights Act that the country is prohibited from taking the steps that would be necessary to stop the boats. Everything else is a palliative, whereas swift deportation would be a real cure.

The court cases that the last Conservative government lost in this area are a reminder of the problems even with a government that really wanted to solve illegal migration, rather than our current administration, that is supported by many people who really believe in open borders.

It is this legislative straitjacket that means the levers of power do not work, but there is a solution. Parliament can try to bind its successors, but it is a matter of constitutional fact that it cannot succeed. All three of these Acts, Human Rights, Climate Change and Equality, could be repealed or annulled. This would restore control to Ministers, who would still be answerable to Parliament and to the electorate for their decisions.

In all constitutions there must be a balance between democratic and judicial decision-making. Historically, the United Kingdom depended upon Ministers to make decisions, and judges to concentrate on what the law meant. Recently, laws have reversed this, to take swathes of decision making away from Ministers to give it to judges. Hence Andy Burnham cannot keep two bad men in prison.

The pendulum has swung too far and needs to swing back. The tools to make it swing are in the Prime Minister and Parliament’s hands.

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Proposals for reform of the House of Lords have been discussed since the 19^th century, and some important ones have been implemented. The 1911 Parliament Act is the most significant of these, but the introduction of life peers in 1958 and the removal of hereditary peers in 1999 and 2026 are also noteworthy.

Yet there remain pressures for further change, not because of any identified failure in the Lords, but because of the feeling that it is not validated by a democratic mandate. Although the Parliament Act says in its preamble that it is a temporary measure until a democratic means of selecting an upper house is found, in the 115 years since it passed, no such method has been implemented.

This ought to change the argument. What matters about the House of Lords is not its legitimacy. The totality of the government in the United Kingdom is legitimate, and has popular support, but the question should be whether the Lords fulfils a useful function and leads to better government. On the whole, in light of its powers, it does achieve this. It also recognises the limitation of its powers as a consequence of the greater democratic legitimacy of the Commons.

This makes Lisvane’s thoughts about how the Commons works all the more interesting. It has power and legitimacy, which it ought to use well, but many would say it does so ineffectually. Lisvane argues that having so many new MPs has made the House of Commons less good at scrutinising legislation, and this is probably true, but I think the problem is more deep-seated.

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Almost every proposed change to the voting system is carried out with the intention of improving the prospects of the party that introduces the change. The Tories favour overseas voting and voter identification, while Labour wants to lower the voting age and encourage postal voting. The Lib Dems, since they lost power, have been great advocates for proportional representation, but when last in majority government, they opposed it.

The latest battleground is compulsory voting, which some think tanks close to Andy Burnham advocate.

It is not, in principle, wrong to ask citizens to carry out certain actions that are needed for the good of the state as a whole. In both world wars, it was accepted not only that men could be conscripted into the armed forces, but that labour could be directed by the authority of the state. Similarly, one of the great jewels of the constitutional settlement, trial by jury, is dependent upon compulsory attendance by citizens who have not volunteered and are chosen effectively by lot.

Are these comparable to voting? Conscription for war is not. It has only been done in the case of dire necessity, although national service continued for a few years after the Second World War had ended. Failure to vote does not threaten the stability of the nation.

It is more akin to jury service, when the needs of the community are placed above those of the individual in a very specific context. Jurors are required so that justice may both be done and be seen to be done, maintaining confidence in the system and preventing an overmighty state from taking people’s liberty, without a chance to show their innocence to an independent group. As with voting, it requires a decision to be made, and simply not wanting to turn up is not a valid excuse for avoiding the service.

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The Daily Telegraph, the journal of conservatism, has been arguing about the merits of net zero this week, with two main articles in favour and two against. Each of the authors is distinguished and worth reading, especially as in the case of Tim Stanley when writing something unexpected.

Lord Frost made the case against net zero with, to my mind, clinical efficiency, Ambrose Evans Pritchard returned to the fray with verve, while Allister Heath was uncharacteristically optimistic. In light of this I thought I should join the discussion and start with a basic principle of conservatism.

There is a strong argument that the origins of the two-party system are to be found in the 17th century civil war between the Royalists, who were the founding Tories, and the Parliamentarians, who were the original Whigs (in spite of Dr Johnson’s quip that the Devil was the first Whig). The Whigs subsequently became the socialists, and the net zero argument fits neatly within their worldview.

The Royalists accepted the imperfect world as it was, while the Parliamentarians believed they could create a new city upon a hill. In theological terms, it may perhaps simplistically be seen as a divide between Thomists and Augustinians.

Conservatives recognise the limitations of mankind’s ability to change the world. There are forces that are stronger, be they divine or natural, which mock man’s efforts. An example of this is that one of the consequences of reducing pollutants in the air is that more sunshine comes through, and this has made Europe hotter than the parts of the world that have not cleaned up their atmospheres.

This is not to oppose the reduction of pollutants in the air; it has been a thoroughly good thing to do, as dirty air was responsible for killing people, or at least bringing about early death. Yet this well-intentioned and good effect has led to more intense heat waves, which is clearly not something the advocates of clean air wanted.

It is a reminder that man is not as powerful as he sometimes thinks, and is certainly not omniscient. “Man proposes, God disposes”, as Thomas à Kempis said.

This limitation of capability is an essential part of the Tory makeup. Realising that it will not be possible to do certain things, therefore there is no point in trying. Often this has been moral rather than ecological. In the 17th century the Puritans thought that godly living would ensure that a perfect world would be created. Many of them also expected that the second coming would occur and they needed to be ready for it. With the Restoration in 1660, all of this piety was washed away in a sea of licentiousness.

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While I was an MP, I often went to village fetes with my children and, mainly thanks to the generosity of the stall holders, they would win blow up toys; hammers and swords and such like. For a few days they would be much used, sometimes even to launch an attack on me, but they would then deflate and be of no further use.

I fear this government is proving to be one of these toys, and is losing its air even faster than they did. This is regrettable, as the country needs decent government and a sense that the new leader is in control.

The failures started almost immediately after Andy Burnham had kissed hands. A schedule of sackings and appointments was promised to the media and not met. Delays began to creep in as the hours went by and the plans, such as they were, failed to take shape. The reshuffle was a mix of vengeance and hubris, showing a lack of care and attention, with important roles being offered about as if they were mere baubles, rather than instrumental in running the country.

The best example of this is the treatment of Rachel Reeves. It is not unkind, merely truthful, to say that she was not a success at the Treasury. It proved to be beyond her, but it is one of the most difficult jobs in government, so failing as the Chancellor is not a particular disgrace. However, when the nation faces a serious security threat, the Defence Secretary is even more important, so to offer this role to someone who had failed is rather scandalous. It shows a shameful disregard for the security of the nation, and raises questions about the seriousness with which Burnham approaches not just defence, but the whole of government. Is it just an elaborate game for him?

Vengeance was shown by the number of loyal Starmer supporters who were fired. On his election as leader, Burnham called for unity and an end to factionism, a call he repeated at the beginning of his first cabinet meeting. But he started his term in office by promoting his faction and damning everyone else. This is the same mistake Liz Truss made when she became Prime Minister. She hardly appointed anyone who had backed Rishi Sunak, which was an error. They included, among their number, some able people who then had little to do on the backbenches other than to plot against her. Burnham is taking the same risk.

The new Prime Minister, who has been spinning his spider’s web in Manchester to entrap and devour Starmer, will find his appeals for unity now fall on deaf ears, as he has not shown the magnanimity that is worthy of his high office. In a mean-spirited reshuffle he has sown the seeds of dissent, which will be husbanded by any policy failures or missteps that Prime Ministers inevitably make.

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This has remained in my mind after listening on Friday to Andy Burnham’s first speech as leader of the Labour Party, for it failed in its structure, content, and delivery. As I want the country to be well-governed, I wish Andy Burnham well, and therefore hoped for some inspiration from his opening words. But it was a poor specimen of the politician’s craft, so I thought it worth writing about how to make a speech.

Our ancestors attached great importance to rhetoric. It was studied, and taught by Aristotle and Cicero. This interest continued down the ages, so that Thomas Hobbes, the famous philosopher, wrote a book entitled The Art of Rhetoric (1637).

Yet the modern age seems less concerned with it, to the detriment of political life. In his books, Hobbes set out the four points of a speech: the Proeme, the Propositions, the Proofs, and the Epilogue. He described the Proeme as resembling an overture in music or the prologue of a play. It introduces and sets the tone.

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On the 250th anniversary of the United States, I thought it might be interesting to compare its Constitution with our own. In many ways, the American Constitution is an attempt to perfect and purify the British one. It is an enlightenment experiment in the perfectibility of rational beings, as opposed to the untidy reality of an old Constitution.

The framers of the American Constitution were heavily influenced by Montesquieu’s theory of the separation of powers. He had been concerned that liberty was at risk whenever the executive, legislature and judiciary were in the hands of the same people. Hence, this was prohibited by the new Constitution.

Interestingly, Montesquieu thought he was describing the British Constitution, but he clearly was not. However, his understanding encouraged the Founding Fathers, many of whom believed themselves to be English gentlemen who were being treated badly by the Crown, and needed to re-establish their rights.

What this meant in practice was that in America the various arms of government are entirely separate. Government ministers do not sit in Congress, with the exception of the Vice President, who has a casting vote in the Senate, and any congressman who becomes a minister has to resign his seat. The judiciary is again separate, and although subject to confirmation hearings in the Senate, as are ministers, they do not sit or engage with Congress.

As the American Constitution is codified, the ultimate arbiter of it is the US Supreme Court. The Founding Fathers were nervous of democracy, so made changing the Constitution difficult, so that in most cases the judges’ verdicts are final and can overrule the democratic part of the system. This has made the judiciary highly political, and appointments to it are made by presidents on the basis of party affiliation. This has had the effect of making the Supreme Court extremely powerful, but it does not always follow the desires of its own political side.

The recent case on birth citizenship is an example of a case that went against the president, in spite of the Republican majority on the Supreme Court. This is particularly interesting, as the 14th Amendment of the Constitution, which gives birthright citizenship, was a post-Civil War change that gave citizenship to black Americans, which they had been denied by the Dred Scott judgment of the Supreme Court in 1857¹.

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St. John Fisher was martyred two weeks before St Thomas More, on 22nd June 1535, and each year that day is now set aside to commemorate these two saints. In the Sarum Rite used by the Catholic Church at that time, it was the feast of St. Alban, the proto-martyr of England. The two men went to their deaths for the same fault in the eyes of Henry VIII. But while More is widely celebrated, Fisher has been broadly forgotten, yet his martyrdom was equally worthy.

Fisher was born around 1459. The argument for this early date is that the portrait of him by Holbein puts his age at 74, and cannot have been painted while he was in the Tower of London, so an age at death of 76 seems probable. He was the son of Robert and Agnes, who seem to have been fairly prosperous, and was born in Beverley in Yorkshire. He certainly showed in his life the gritty determination associated with that county.

Fisher was primarily a scholar and cleric, but via Henry VII’s mother, Margaret Beaufort, he came to national prominence. He greatly admired Margaret and was her spiritual adviser from 1497, when he was appointed her confessor, until her death shortly after Henry VIII’s succession to the throne.

It was through her influence that Henry VII promoted him in 1504 to be Bishop of Rochester, one of the poorest bishoprics, and he did so after seeking Margaret’s permission. Henry wrote to his mother, saying that he did not wish to offend her by appointing her confessor, but he did so because he had had heard of Fisher’s “great and singular virtue… especially his good and virtuous living and conversation”.

That Fisher lived virtuously was borne out after his imprisonment in the Tower, when the king’s men raided his living quarters. The only items of value they found were plate for liturgical use and books which they wantonly destroyed. In great excitement they found a locked box in his private oratory, which they took away to open in front of witnesses, expecting to find much treasure within. All they found were a hair shirt and three scourges which Fisher used to purify himself. When informed of this, Fisher said he would have removed them had he not left in such a hurry, for he did not want his piety to be a matter of pride.

As well as being Margaret’s spiritual adviser, Fisher was a senior figure at Cambridge in 1494, when he was the Senior Proctor, becoming Master of Michaelhouse in 1497, and Vice-Chancellor in 1491. At this time, Cambridge was going through one of its phases of listlessness, with little learning and no money. Fisher helped change both of these conditions.

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Andy Burnham’s advocacy of devolution brings the problem of England back into the political limelight. It is not new, but there has never been a good answer to it, and regional mayors are simply another attempt to solve a potentially insoluble problem. It is that England is too big.

England contains 85% of the population of the United Kingdom. This has risen since the time of Arthur Balfour (1848-1930), when it was just under 75%. Nonetheless, he made a point in relation to Home Rule for Ireland that remains essential today. Balfour set out his concerns in a speech made in Aberdeen in 1913, when he called Home Rule an “experiment in federalism of the most impossible, unexampled, and preposterous character”. This was because federalism depended, as it still does, on some level of proportionality between the members. If one part overwhelmingly overshadows the others, it cannot work.

This is why we have Parliaments or assemblies for Northern Ireland, Scotland and Wales, but not for England. It would dwarf the other bodies in its size, the population it represents, and its wealth. The First Minister of England would be the true prime minister, as his power would, in reality, become greater than that of the nominal prime minister. Thus, to make federalism work, England would have to be divided up into regions that would be at least proportionate to the devolved authorities.

That, however, would be outrageous. How can a federal system be fair when three areas are allowed to retain their historic characters as unified nations, but England cannot? The biggest country would have to be chopped up to accommodate the smaller ones, which was and is simply unfair to the English and deeply undemocratic.

Yet this is the effect of what Burnham seeks to do. It is clear that a new government led by him would look to advance the steps taken by George Osborne, which created regional devolved authorities covering made-up areas. They have no geographic logic, no historic unity, and no democratic mandate.

With the exception of the Greater London Authority, whenever a vote has been allowed via a referendum on these structures, they have been defeated. They have been dreamt up by bureaucrats for the convenience of officialdom, not for the benefit of residents.

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Jacob

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Turmoil in Downing Street and a rapid turnover of Prime Ministers is not new. It has been part of the system since the 18th century and depends much on personalities as on events. In the 305 years since Sir Robert Walpole became First Lord of the Treasury and de facto Prime Minister, there have been 58 holders of the office, if Lord Bath and Lord Waldegrave are excluded, as they usually are (Bath was given the seals of office as First Lord of the Treasury, but returned them after 48 hours in 1746 as he could not form a government, while Waldegrave tried for five days in 1757 in similar circumstances and also failed).

Waldegrave’s mini prime ministership came in a period almost as volatile as our own. From 1756 to 1766, the Duke of Newcastle was replaced by the Duke of Devonshire in 1757, who was briefly succeeded by Waldegrave, who was then superseded by a returning Newcastle. He lasted five years, including over the transition from George II to George III, until the Earl of Bute took his place for just under a year before Grenville assumed office until 1765, when the Marquis of Rockingham kissed hands, only to be replaced by William Pitt the Elder.

Thus in ten years there were seven complete appointments of a Prime Minister and one aborted one. During this period the country did rather well, even though it was at war for much of it. The Seven Years’ War, which Pitt strongly supported, ran from 1756 to 1763, and included the great and famous year of victories, 1759, when successes such as Pondicherry secured India and the wonderful generalship of Wolfe’s victory at Quebec removed the French threat from Canada. War obviously has an economic cost and adds to taxation, which is never popular, so was part of the reason for the instability.

Personal factors also mattered. Pitt was the driving force of the time, a much bigger political figure than any of his rivals, possibly on the scale of Boris Johnson in terms of his charisma and popular appeal. He was loved by the people and known as the Great Commoner. It was down to him that England was victorious in the Seven Years’ War, and it was said in 1759 that “The church bells were worn threadbare with ringing for victories”.

Yet Pitt was not a collegiate man, and George III disliked him because he had, in his view, betrayed his father, Frederick, Prince of Wales, by serving George II. Hanoverian fathers rarely got on with their sons. Thus George I hated George II, who likewise loathed his heir Frederick Prince of Wales, the father of George III. In this context anyone who abandoned Frederick to support George II was deemed to be a traitor by George III.

Pitt was also mad, not just as a term of political abuse, but in the sense that in a modern age he would probably have been certified. On some occasions he could not bear to see anyone at all, so his food was simply taken to his room by a footman and he would eat it alone. As the footman brought the food in, Pitt would be looking out of the window, as he could not bear even to see anyone else. Perhaps understandably, George III did not want this man to be his Prime Minister, so avoided it by giving his tutor Bute the role once he had eased out Newcastle.

It was also a period of political transition. Boswell recorded Johnson saying, “Walpole was a minister given by the King to his people: Pitt was a minister given by the people to the King”. This epigram illustrates the constitutional development that was taking place at the time, although one it is easier to spot in retrospect.

Although the country was a long way from reform, the position of prime minister was moving from being one purely of royal patronage, but a place that needed popular support as well. The age of Walpole and Pelham had gone, the King’s ministers who knew how to control the Commons, and now the Commons was more sensitive to popular demands, and a king might well have to appoint a prime minister who was not his first choice.

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Since Andy Burnham has won the Makerfield by-election, there must be a new election for the Mayor of Greater Manchester. In most cases, mayors may remain Members of Parliament, but this is not allowed if the mayoralty includes the role of Police and Crime Commissioner.

Perhaps not surprisingly, Labour has rushed through a change to the mayoral voting system, in the hope of making it easier to win this second election. Losing it would be a catastrophic blow for a new Prime Minister, assuming the existing one is out of office by then, especially if he were the man who had caused the vacancy.

In 2011, 13 million people voted ‘No’ to the Alternative Vote replacing First Past the Post (FPTP) for British elections, while a mere 6.1 million voted for the change. Support for the status quo was a little over two-thirds of the electorate, while only 32.1% wanted a new system. Turnout was relatively low at 42%, but respectable, especially when it was such a clear margin.

This referendum applied only to parliamentary elections, but its clear result ought surely to have some relevance to other elections. Certainly, it provided some justification for the last Conservative government instituting FPTP for mayors and police commissioner elections, where a proportional system had previously been used. Yet Labour has used its parliamentary majority to return to the Supplementary Vote system.

The Supplementary Vote system is not quite the same as the Alternative Vote, but it is similar. In the Alternative Vote, electors rank each party or candidate in turn and may use as many preferences as there are candidates, although the last preference would always be otiose. The votes are then reallocated as each candidate in turn is eliminated, starting with the person with the lowest number of votes, until only two candidates are left, at which point the one with the most votes is the winner.

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